# Uma Shanker Rai and others v. Deputy Dirctor, Consolidation, Azamgarh and others

- **Citation:** (2010) 1 ILRA 270
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-03-18
- **Case number:** Civil Misc. Writ Petition No. 11825 of 2010
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-shanker-rai-and-others-v-deputy-dirctor-consolidation-azamgarh-and-others-41591
- **Pages:** 16

## Headnote

U.P. Consolidation of Holding Act Section
48
(3)-Power
of
Dy.
Director
of
Consolidation-against
present
consolidation
scheme
on
serious
complaint regarding allotment of Gaon
Sabha land to Private chak holders-the
D.D.C. deputed settlement officer of
consolidation-who visited in village in
question recorded statement of the
chairman
and
the
member
of
1 All] Uma Shanker Rai and others V. D.D.C, Azamgarh and others

271
consolidation committed-reported great
bungling done by the consolidation
officer, consolidator and the lekhpal
conclusion
of
entire
consolidation
scheme with direction to prepare fresh
scheme after hearing all concern-may
not be strictly within the provision of
Section 48, but any interference by writ
court court amounts to allow the said
irregularities to continue-even otherwise
full opportunity has been proposed to be
given to all concerned petitioner can not
be
aggrieved
person-No
locustandipetition dismissed.

Held: Para 18, 22 & 27

Applying the aforesaid principle of law
laid down by Hon'ble Apex Court in given
facts and circumstances of the case, I am
of the considered opinion that since vide
impugned
order
passed
by
Deputy
Director
of
Consolidation
while
cancelling the provisional consolidation
scheme of the village in question, a fresh
provisional
consolidation
scheme
is
intended to be prepared by another
Assistant
Consolidation
Officer,
thereafter aggrieved person would be
entitled to file objection against said
fresh provisional consolidation scheme
of the village, under section 20(2) of the
Act, therefore, at this stage the right and
interest of petitioners cannot be held to
be prejudiced or impaired and further it
can not be held that they have any
genuine grievance against impugned
action accordingly it can not be held that
the petitioners are 'aggrieved persons',
entitled to file instant writ petition at
this stage.

Thus from a joint reading of aforesaid
sub-sections of section 48 of the Act it is
clear that any subordinate authority to
the Director may after allowing the
parties concerned an opportunity of
being heard refer the record of any case
or
proceedings
to
the
Director
of
Consolidation for action under Subsection
(1)
thereupon
Director
of
Consolidation
would
be
entitled
to
exercise his power under Section 48 (1)
of the Act. The power conferred upon
Director/Deputy
Director
of
Consolidation under Sub-Section (1) of
Section 48 is of wide amplitude wherein
he can examine the record of any case
decided or proceedings taken by any
subordinate authority for the purposes of
the satisfying himself as to the regularity
of proceedings, or as to the correctness,
legality or propriety of any order (other
than interlocutory order) passed by such
authority in the case or proceedings.
Therefore, in my opinion, the revisional
power, can be exercised by the Director/
Deputy Director of Consolidation to
examine the regularity of any proceeding
taken by the

## Text

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270 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

subject's post for which on an application
being made, appropriate orders shall be
passed.

4. Counsel for the petitioner with
reference to the said order submits that
since the Director of Education himself
has recorded that the petitioners are
teaching in the institution, the Director
should have directed payment of salary to
the
petitioners
after
permitting
the
conversion of the existing two posts..

5. Having heard learned counsel for
the parties and having gone through the
records of the present writ petition, I am
of the considered opinion that the
contention raised on behalf of the writ
petitioners is totally misplaced.

6. A teacher is entitled for payment
of salary from the State Exchequer only if
he has been appointed against a duly
sanctioned post with reference to the
provisions of Section 9 of the Act of
1971. No teacher can be appointed in
absence of a duly created post. After the
post is created it has to be filled in
accordance with the statutory provisions
applicable then. No earlier appointee can
be adjusted against such a post. Therefore,
the relief prayed for by the petitioners for
payment of salary after conversion of the
post has necessarily to be rejected.

7. It goes without saying that if the
Management of the institution makes an
application for conversion of the post of
L.T. Grade Teacher (Arts) to that of L.T.
Grade Teacher (Science), the matter shall
be considered by the competent authority.
Fresh recruitment shall thereafter be made
in accordance with the provision of
Intermediate
Education
Act/U.P.
Secondary Education Services Selection
Board Act, 1982 and the petitioners will
be at liberty to apply.

8. For the period during which the
petitioners may have worked in the
institution in absence of a duly sanctioned
post of Science Teacher, the responsibility
of making payment of salary is upon the
Management of the institution alone. If
the petitioners are so advised, they may
initiate such suit proceedings against the
Management as they may be advised.

9. Writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2010

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 11825 of 2010

Uma Shanker Rai and others...Petitioners
Versus
Deputy Dirctor, Consolidation, Azamgarh
and others

 ...Respondents

Counsel for the Petitioners:
Sri Sankatha Rai
Sri J.P. Singh

Counsel for the Respondents:
Sri Mahesh Narain Singh
Sri Priya Ranjan Rai
C.S.C.

U.P. Consolidation of Holding Act Section
48
(3)-Power
of
Dy.
Director
of
Consolidation-against
present
consolidation
scheme
on
serious
complaint regarding allotment of Gaon
Sabha land to Private chak holders-the
D.D.C. deputed settlement officer of
consolidation-who visited in village in
question recorded statement of the
chairman
and
the
member
of
1 All] Uma Shanker Rai and others V. D.D.C, Azamgarh and others

271
consolidation committed-reported great
bungling done by the consolidation
officer, consolidator and the lekhpal
conclusion
of
entire
consolidation
scheme with direction to prepare fresh
scheme after hearing all concern-may
not be strictly within the provision of
Section 48, but any interference by writ
court court amounts to allow the said
irregularities to continue-even otherwise
full opportunity has been proposed to be
given to all concerned petitioner can not
be
aggrieved
person-No
locustandipetition dismissed.

Held: Para 18, 22 & 27

Applying the aforesaid principle of law
laid down by Hon'ble Apex Court in given
facts and circumstances of the case, I am
of the considered opinion that since vide
impugned
order
passed
by
Deputy
Director
of
Consolidation
while
cancelling the provisional consolidation
scheme of the village in question, a fresh
provisional
consolidation
scheme
is
intended to be prepared by another
Assistant
Consolidation
Officer,
thereafter aggrieved person would be
entitled to file objection against said
fresh provisional consolidation scheme
of the village, under section 20(2) of the
Act, therefore, at this stage the right and
interest of petitioners cannot be held to
be prejudiced or impaired and further it
can not be held that they have any
genuine grievance against impugned
action accordingly it can not be held that
the petitioners are 'aggrieved persons',
entitled to file instant writ petition at
this stage.

Thus from a joint reading of aforesaid
sub-sections of section 48 of the Act it is
clear that any subordinate authority to
the Director may after allowing the
parties concerned an opportunity of
being heard refer the record of any case
or
proceedings
to
the
Director
of
Consolidation for action under Subsection
(1)
thereupon
Director
of
Consolidation
would
be
entitled
to
exercise his power under Section 48 (1)
of the Act. The power conferred upon
Director/Deputy
Director
of
Consolidation under Sub-Section (1) of
Section 48 is of wide amplitude wherein
he can examine the record of any case
decided or proceedings taken by any
subordinate authority for the purposes of
the satisfying himself as to the regularity
of proceedings, or as to the correctness,
legality or propriety of any order (other
than interlocutory order) passed by such
authority in the case or proceedings.
Therefore, in my opinion, the revisional
power, can be exercised by the Director/
Deputy Director of Consolidation to
examine the regularity of any proceeding
taken by the subordinate authorities and
to examine, the correctness, legality or
propriety of any order (other than
interlocutory order) passed by such
authority in the case decided by him. The
exercise
of
said
power
cannot
be
confined to examine correctness legality
or propriety of any order passed by such
authority in the case decided by him
alone . The expressions "regularity of the
proceedings" used under Sub-section (1)
of Section 48 of the Act is also of the
wide import, which may embrace in it,
the
preparation
of
provisional
consolidation scheme of unit or the
village by Assistant Consolidation Officer
under Section 19-A of the Act, as one of
the such proceedings, therefore, while
exercising the revisional power, which
can also be exercised by Deputy Director
of Consolidation on a reference, he was
fully competent to cancel the provisional
consolidation scheme prepared by the
Assistant Consolidation Officer which
was found by him irregular, and could
not be otherwise corrected except by
cancellation in its entirety. Thus the
impugned
action
taken
by
Deputy
Director of Consolidation was well within
the ambit of his authority under law and
can not be held to be beyond the scope
of authority under law.

The view taken by Hon'ble Apex Court in
aforesaid case, in my considered opinion,
supports
the
view
taken
by
me
hereinbefore, therefore, in any view of
272 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

the matter assuming that the impugned
order passed by Deputy Director of
Consolidation may not be strictly in
conformity of the provisions of section
48 (3) of the Act, or otherwise found to
be contrary to law even then, I am not
inclined
to
exercise
extra-ordinary
discretionary jurisdiction under Article
226 of the Constitution in favour of the
petitioner for the simple reason that on
quashing of the impugned order, the
provisional
consolidation
scheme
prepared
by
Assistant
Consolidation
Officer Sri Dal Singar Tiwari would be
restored resulting which all pervasive
illegalities
crept
in
provisional
consolidation scheme of the village,
which has been cancelled by Deputy
Director of Consolidation, would be
restored and would be perpetuated. Thus
it is fit case where this Court should
refuse to exercise discretionary writ
jurisdiction in favour of the petitioner.
Case law discussed:
(1975) 2 SCC 702, A.I.R. 1976 SC 578, (2002)
1 SCC 33, AIR 1999 SC 2583, , AIR 1988 SC
94, AIR 1966 SC 828.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. By this petition, the petitioners
have challenged the judgment and order
dated 08.01.2010 passed by Deputy
Director of Consolidation, Azamgarh in
Misc. Case No. 62 (Dayanand Rai and
others Versus State of U.P. and others)
under Section 48(3) of U.P.C.H. Act,
hereinafter referred to as the Act, whereby
the provisional consolidation scheme of
Village Bibipur, Pargana and Tehsil
Nizamabad, District Azamgarh prepared
by
Assistant
Consolidation
Officer
namely Sri Dal Singar Tiwari has been
cancelled
and
another
Assistant
Consolidation Officer has been directed to
make fresh provisional consolidation
scheme of the unit in question and
complete the same by 30.6.2010 and
Settlement
Officer
of
Consolidation,
Azamgarh has also been directed to to
take disciplinary action against Sri Dal
Singar Tiwari the Assistant Consolidation
Officer,
Consolidator
and
Lekhpal
concerned. The aforesaid order has been
passed
by
Deputy
Director
of
Consolidation, Azamgarh purporting to be
under Section 48(3) of U.P.C.H. Act on
the complaints of some chak holders of
the village thereupon after making spot
inspection and taking statements of
villagers
and
aggrieved
persons
Settlement Officer Consolidation had
recommended
for
cancellation
of
provisional consolidation scheme of the
unit prepared by Assistant Consolidation
Officer.

2. Heard Sri R.N. Singh, learned
Senior counsel and Sri Sankatha Rai
assisted by Sri J.P. Singh for the
petitioners and Sri Kripa Shanker Singh
for the respondent no. 9.

3. Sri R.N. Singh, learned senior
counsel for the petitioners has contended
that the impugned order has been passed
by Deputy Director of Consolidation
under the garb of the provision of Section
48(3) of U.P.C.H. Act, cancelling the
provisional consolidation scheme of the
village
prepared
by
the
Assistant
Consolidation
Officer
under
the
provisions of Section 19-A of the Act,
whereas proper course of the action for
aggrieved
chak
holders
against
provisional consolidation scheme was to
file
objection
before
Consolidation
Officer under Section 20(2) of the Act
and aggrieved chak holders have further
opportunity to file appeal against the
decision of Consolidation Officer before
the Settlement Officer of Consolidation,
under Section 21(2) of the Act, and
further remedy of revision before Deputy
1 All] Uma Shanker Rai and others V. D.D.C, Azamgarh and others

273
Director of Consolidation under Section
48(1) of the Act is available to the
aggrieved chak holders of the village. In
such circumstances it was not open to the
Deputy Director of Consolidation to pass
impugned order under Section 48(3) of
the Act, merely on complaints of some
chak holders of the village, by making an
enquiry thereon.

4.

Learned
counsel
for
the
petitioners further submitted that the
Deputy Director of Consolidation under
the provisions of Act is statutory
functionary as such he can exercise only
those powers and perform those functions
which are specifically conferred upon him
under the provisions and scheme of the
Act. He has no plenary power under the
scheme of the Act whereby the other
provisions of the said Act can be made
unworkable and scheme of the Act can be
defeated. From the tenor of the impugned
order, it appears that Deputy Director of
Consolidation has passed impugned order
as if he was exercising any supervisory
administrative powers, upon the subordinate consolidation authorities whereas
under the scheme of the Act no such
administrative power is conferred upon
him, as such impugned action taken by
him is ultravires the aforesaid provisions
of the Act.

5. It was further contended by Sri
R.N. Singh that it is no doubt true that
power conferred upon Deputy Director of
Consolidation under Section 48 of the Act
is somewhat supervisory in nature and
such power can be exercised by him as
revisional court and/or authority against
the
decisions
of
sub-ordinate
consolidation authorities, and similar
power can also be exercised by him but
only on a proper reference made by the
sub-ordinate authority wherein record of
any case or proceedings is referred to him
under sub-section (3) of Section 48 for his
decision/action under sub-section (1) of
Section 48 of the Act, but the impugned
order passed by Deputy Director of
Consolidation is neither covered nor
referable to the provisions of Section
48(3) of the Act, thus it is beyond the
scope of authority under law as such
arbitrary and is without jurisdiction,
therefore cannot be sustained.

6. Contrary to it, Sri Kripa Shanker
Singh, learned counsel appearing on
behalf of respondent no. 9 in support of
the impugned order has submitted that the
same has been passed by Deputy Director
of Consolidation on complaints of several
persons of the village who are chak
holders
in
proposed
consolidation
scheme, after holding an enquiry thereon
and after affording an opportunity of
hearing to the several chak holders of the
village and those chak holders who have
supported
the
existing
provisional
consolidation scheme of the village
prepared
by
Assistant
Consolidation
Officer namely Sri Dal Singar Tiwari.

7.

While
elaborating
and
substantiating his arguments Sri Kripa
Shanker Singh has submitted that on
receipt of various complaints the Deputy
Director of Consolidation had directed the
Settlement Officer of Consolidation to
hold an enquiry and examine the matter
who in pursuant thereto had examined
several chak holdersof the village and
made local spot inspection, thereafter,
recommended
for
cancellation
of
provisional
consolidation
scheme
prepared
by
Assistant
Consolidation
Officer namely Sri Dal Singar Tiwari. In
the said report, he had pointed out that the
274 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

provisional
consolidation
scheme
prepared
by
Assistant
Consolidation
Officer was out come of malpractices,
manipulations and was full of illegalities
of such a nature which could not possibly
be cured otherwise except by the
cancellation of provisional consolidation
scheme
prepared
by
Assistant
Consolidation Officer and since the
aforesaid recommendation was made by
Settlement Officer of Consolidation after
making spot inspection of the village and
hearing the villagers who were chak
holders of the village as such aforesaid
recommendation could be treated to be a
reference within the meaning of Section
48(3) of the Act. Therefore while
cancelling
the
said
provisional
consolidation scheme it can not be said
that the impugned order passed by the
Deputy Director of Consolidation is
arbitrary and beyond the scope of its
authority under law. As such the order
passed
by
Deputy
Director
of
Consolidation can not be faulted with on
that score.

8. He has further contended that at
any view of the matter since while
cancelling the provisional consolidation
scheme
preprepared
by
Assistant
Consolidation Officer namely Sri Dal
Singar Tiwari, the Deputy Director of
Consolidation
has
directed
another
Assistant Consolidation Officer to prepare
fresh provisional consolidation scheme of
the village in question, therefore, no
person can claim that they have any right
to be heard before cancellation of said
provisional consolidation scheme as no
vested right of any person can be said to
be impaired by impugned order passed by
the Deputy Director of Consolidation. He
further submitted that after preparation of
fresh provisional consolidation scheme of
the village in question in pursuance of the
impugned
order
passed
by
Deputy
Direction of Consolidation, the aggrieved
chak holders would have right to file
objection under Section 20(2), appeal
under Section 21(2) and Revision under
Section 48(1) of the Act, as such the
impugned
order
passed
by
Deputy
Director of Consolidation can not be
legitimately questioned by the petitioners
at this stage, as it can not be said that any
vested right of the petitioners are impaired
by now and that they are aggrieved
persons and entitled to challenge the same
before this Court.

9. He has further contended that not
only this, but while cancelling the
aforesaid
provisional
consolidation
scheme
the
Deputy
Director
of
Consolidation
has
directed
another
Assistant Consolidation Officer to prepare
the
fresh
provisional
consolidation
scheme of the village and complete the
exercise by 30 June, 2010. As such,
assuming that the impugned order passed
by Deputy Director of Consolidation is of
administrative in nature even then since it
has removed/cured all pervasive gross
illegalities
crept
in
the
existing
provisional consolidation scheme of the
village in question, restoration of which
would perpetuate the said illegalities, and
would ultimately defeat the aims and
object of the consolidation scheme,
therefore, this court should refuse to
exercise its discretionary jurisdiction
under Article 226 of the Constitution of
India.

10. In order to appreciate rival
contentions of the parties it would be
useful to extract the impugned order dated
8.1.2010 passed by Deputy Director of
Consolidation, Agamgarh as under:-
1 All] Uma Shanker Rai and others V. D.D.C, Azamgarh and others

275
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o isM+ gS] ftls nwljs pdnkj ds pd es izfo"V dj fn;k x;k
gSA Hkw[k.M la[;k 207 esa ekSds ij ckWl dh [kwVh o iqjkuk
ckx gS] bldh 100 iSls dher yxk nh x;h gS A Hkw[k.M
la[;k 203 Jhizdk'k o fnus'k vkfn dk gS] blesa 10fo'ok
dh ekfy;r yxkdj mek'kadj o lw;Zeq[kh vkfn dk mMku
pd cSBk fn;k x;k gSA Hkw[k.M la[;k 116 jdck 1.005
dM+h ckx dk uEcj gS] blesa pkj i{kdkjksa dk 1/4] 1/4
va'k gS ] fdUrq bl iwjs uEcj ij ;qf/kf"Bj jk; o ckcwjk;
dk pd cuk fn;k x;k gSA blh izdkj Hkw[k.M la[;k 117
esa Hkh vU; fgLlsnkjksa dks u nsdj dsoy ;qf/kf"Bj jk; dks
pd ns fn;k x;k gSA Hkw[k.M la[;k 215 vfHkys[kksa esa
0.365 dMh ntZ gS ] tcfd ekSds ij flQZ 0.050 dMh
gS rFkk 'ks"k {ks=Qy lM+d esa pyk x;k gSA blds ckotwn bls
nq:Lr u djrs gq;s iwjk 0.365 dMh jdck pdnkj
'kEHkwukFk iq= eaxy dks 70iSls ds jsV ls fdukjs dh Hkwfe ij
,ykV dj fn;k x;k gSaA blh izdkj pdnkj 143 ds pd
mMku cuk fn;s x;s gS vkSj 100 iSls dh ekfy;r 70iSls
esa unh ds fdukjs esa ns nh x;h gSA pdnkj la[;k 213 dks
edku ds fdukjs ewy xkVs ij pd iwjk ugh fn;k x;k gS o
,d pd mMku cuk fn;k x;k gSA Hkw[k.M la[;k 201 ekSds
ij ckx ds Lo:i esa gS fdUrq bl ij pd cu x;k gS
]tcfd ;g ikWp [kkrs nkjksa ds uke lh0,p0&181⁄4pdckgj1⁄2
gksuk pkfg, FkkA Hkw[k.M la0123 esa ekSds ij lqjsUnz ukFk
jk; dk uydwi ik;k x;k] tks gfj'kadj vkfn ds pd esa pyk
x;k gSaA blds vykok Hkw[k.M la0 121 ds nf{k.kh esM ls
276 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

ukyh o jkLrk fn;k tkuk pkfg, Fkk] tks ugh fn;k x;k gSa A
Hkw[k.M la0 88 Jherh nsoh o ;qf/kf"Bj vkfn dk gSA
;qf/kf"Bj viuk pd vU;= cuok fy;s gSA Jherh nsoh dh
vksj ls Hkw[k.M la0 82 ds HkwLokeh dh lgefr ls pd ekWxk
x;k Fkk] ftls ,0lh0vks0 Jh frokjh }kjk ugh fn;k x;k A
Hkw[k.M la0 50 o 51 fnus'k iq= jke ujk;u dk rugk
uEcj gS] tks lMd ds fdukjs fLFkr gS] fdUrq bl ij yxHkx
0.500 dMh dk pd v'kksd vkfn pdnkjks dk xyr :i
ls cuk fn;k x;k gSA vuqlwfpr tkfr dh cLrh esa tkus ds
fy, mUgsa dksbZ jkLrk ugh fn;k x;k gSA Hkw[k.M la0 53
lMd ds fdukjs dk gS] tks 'kelsj vkfn dk gS ] fdUrq bUgs
;gkW ls gVkdj ;qf/kf"Bj jk; dk pd 0.560 dM+h dk cuk
fn;k x;k gSA Hkw[k.M la0 13 dh 20 iSls dh ekfy;r 12
ua0 ij 60 iSls dh nj ls izfn"V dj nh xbZ gSA Hkw[k.M
la0 6 Jherh nsoh dk gS ] budk pd bl Hkw[k.M ij cuk
rks gS] fdUrq nf{k.k vksj johUnz o vf[kys'k vkfn dks xyr
:i ls lMd ls yxkdj pd ns fn;k x;k gS A Hkw[k.M la0
45 jdck 0.239 dMh lM+d ds fdukjs gS] tgkW ls ewy
[krsnkj dks gVkdj nwljs pdnkj dks cSBk fn;k x;k gSA
mifjof.kZr fo"k; ds vk/kkj ij ,l0vks0lh0 vius fu"d"kZ
esa fy[krs gS fd mDr rF;ksa ls Li"V gS fd lgk;d pdcUnh
vf/kdkjh 1⁄4,0lh0vks01⁄2 Jh nyflaxkj frokjh }kjk vfoosdiw.kZ
rjhds ls pd fuekZ.k fd;k x;k gS] ftlls d`"kdks esa
vlUrks"k O;kIr gks x;k gSA dqN O;fDr;ksa }kjk vU; pdnkjksa
ds gkfu dh dher ij pdcUnh izfdz;k ds ykHkksa dk iz;ksx
xyr jhfr ls vius i{k esa fd;k x;k gSA xzke esa xqVcUnh Hkh
gS] d`"kdksa dk ,d oxZ pdcUnh izfdz;k dks blds vkxs c<kus
ds i{k esa gS] ogha nwljk oxZ mifjof.kZr vfu;ferrkvksa dks
ns[krs gq, pd fuekZ.k fujLr djds u;s fljs ls pd fuekZ.k
dh ek¡x dj jgk gSA ,l0vks0lh0 dk dFku gS fd xqVcUnh
ds ifjos'k esa ,0lh0vks0 Jh frokjh dks vkSj Hkh vf/kd
lko/kkuh ,oa laosnu'khyrk ls dk;Z djuk pkfg, Fkk] tks
muds }kjk ugha fd;k x;kA pdfuekZ.k ds nkSjku lgk;d
pdcUnh vf/kdkjh Jh ny flaxkj frokjh }kjk xq.koRrk dk;e
ugha j[kh tk ldhA

izrki ujk;.k jk; o ;qf/kf"Bj jk; vkfn vusd
xzkeh.kksa us vkosnu fnukWd 12.11.2009 bZ0 esa
v/kksgLrk{kjh esa le{k gkftj gksdj lkjh f'kdk;rksa dks
fujk/kkj crkrs gq, nkok fd;k Fkk fd ,0lh0vks Lrj ls pd
fuekZ.k dh dk;zokgh lqpk: <ax ls lEiUu gqbZ gS o pd
m)j.k forfjr fd;k x;k gS] mlds ckn voS/k ek¡x j[kus
okys dfri; fxus pqus O;fDr;ksa dk futh LokFkZ u gy gks
ldus ds dkj.k xyr o fujk/kkj vkjksi yxkrs gq, f'kdk;rh
izkFkZuk i= fn;s x;s gSaA mudk mn~ns'; dsoy pdcUnh izfdz;k
dks ckf/kr djuk gSA vr% f'kdk;rksa dks fujLr djds izfdz;k
dks pdcUnh vf/kdkjh Lrj ij vkxs c<+krs gq, pd
vkifRr;ksa ij lquokbZ djds mudk fu;ekuqlkj fuLrkj.k dk
funsZ'k fn;k tk;A xzke iz/kku Jherh vUrjkth us bl vkosnu
ij Hkh viuh lgefr izdV djrs gq, vius eqgj ds lkFk
gLrk{kj vafdr fd;s gSaA fnukad 16.12.2009 bZ0 dks
xzke iz/kku Jherh vUrjkth o pdcUnh lfefr ds lnLr
loZJh c`tiky 'kekZ] izfeyk nsoh ,oa ladBk jk; us uksVjh
'kiFk i= rS;kj djk;k Fkk] ftls v/kksgLrk{kjh ds le{k
fnuk¡d 21.12.2009 bZ0 dks is'k fd;k Fkk] ; fi buesa ls
ladBk jk; dks NksMdj vU; rhuksa inkf/kdkfj;ksa us vxys gh
fnu fnuk¡d 22.12.2009 bZ0 dks iqu% v/kksgLrk{kjh ds
le{k gkftj gksdj bl vk'k; dk c;ku vafdr djk;s gSa fd
mudk 16.12.2009 bZ0 dk dfFkr 'kiFk i= xyr o
QthZ ekuk tk;A blls Li"V gks jgk gS fd bl xzke ds dqy
ik¡p inkf/kdkfj;ksa esa ls pkj yksxksa fdlh ,d n`<+ er ds ugh
gS] f'kdk;rdrkZ i{k ds lkFk vkus ij os mUgh dh Hkk"kk
cksyrs gq, muds eUrC; ij viuh lgefr izdV dj nsrs gS]
ogh f'kdk;r dk [k.Mu djus okys i{k ds lkFk vkus ij os
iwjh f'kdk;r dks xyr crkrs gq, pdcUnh izfdz;k dks vkxs
c<+kus dh ckr djus yxrs gSa] bl fojks/kkHkklh euksHkko ds
izdVhdj.k ls Kkr gks jgk gS fd os LFkkuh; Lrj ij nksuksa
i{kksa ds fdlh Hkh fojks/k ls [kqn dks cpk;s j[kuk pkg jgs gSaA
pw¡fd xzke Lrj ij pdcUnh lfefr iwjs pdcUnh izfdz;k ds
nkSjku ,d csfld bdkbZ ds :i esa dk;Z djrh gSa] vr% bl
iwjs izdj.k ij pdcUnh lfefr ds inkf/kdkfj;ksa dk eUrO;
izkIr djus gsrq mUgsa v/kksgLrk{kjh }kjk C;ku gsrq cqyk;k x;k
FkkA

cUnkscLr vf/kdkjh pdcUnh vktex< }kjk viuh
tkWp vk[;k fnukWd 7.12.2009 bZ0 esa vfu;ferrk dk
tks foLr`r fooj.k izLrqr fd;k x;k gS] mls Li"V gks x;k gS
fd pd fuekZ.k djus okys lgk;d pdcUnh vf/kdkjh Jh ny
flaxkj frokjh us pd fuekZ.k djrs le; LFky ij tkdj
Hkw[k.Mks dh HkkSfrd fLFkfr dk voyksdu vkSj vkx.ku fof/k
fo/kku iwoZd dHkh ugha fd;k] vU;Fkk fdlh ds vkoklh;
Hkou] eMbZ] ckx] ckWl [kwWVh ] futh uydwi fdlh vU;
pdnkj ds pd esa izfo"V u gks tkrs A pkj i{kdkjksa ds iwjs
va'k ;qf/kf"Bj jk; ds pd ds :i esa ifj.kr u gksrs] Hkw[k.M
la0 215 ds 0.050 dMh jdcs dks NksMdj lMd esa
lekfgr gks pqds 0-315 dMh jdcs dks Hkh 'kfey djds iwjs
0-365 dMh {ks=Qy dks 'kEHkw ukFk ds pd ls ,ykV dj
fn;k tkrk] iwjk xzke dsoy 467 pdksa dk gS] tks cgqr cMk
ugh ekuk tk ldrk] blds ckotwn ;gkW 87 mMku pd cuk
fn;s x;s ftudk vkSfpR; izekf.kr dj ikuk vR;Ur dfBu gS]
blh izdkj 25% ls vf/kd {ks=Qy dh deh okys 36 pdnkj
,oa o`f) okys 17 pdnkjks ds gksus dk Hkh dksbZ rdZ le{k
ls ijs gSa LFky ij ckx gkus ds ckotwn xk0 ua0 201 dk
lh0,p0 18 u fd;k tkuk nks"kiw.kZ gS] blh izdkj xk0ua0
1 All] Uma Shanker Rai and others V. D.D.C, Azamgarh and others

277
82 ds Hkwfe/kj dh lgefr dk laKku ysdj pd u cukuk]
vis{kkvksa ds vuq:i LFky ij ukyh ekxZ u NksMk tkuk]
vuqlwfpr tkfr dh cLrh dks jkLrs ls oafpr dj nsuk] lMd
ds fdukjs ds ewy uEcj ls pdnkjksa dks gVkdj dfri; yksxksa
dks vuqfpr ykHk nsrs gq, ogkWa pd vkoafVr dj nsuk u
dsoy pdcUnh izfdz;k ds iz;kstu ,oa mn~ns';ksa dks foQy ns
jgk gS vfirq lMd@eq[; ekxZ ds fdukjs ds ewy uEcjksa dks
muds gh ewy [kkrsnkjksa ds pd esa izfn"V dj nsus vFkok pd
ckgj j[kus fo"k;d 1981 bZ0 ds 'kklukns'k@ek0 pdcUnh
vk;qDr ds funsZ'kksa dh Hkh [kqyh vogsyuk gSA bl izdkj fcuk
LFkyh; voyksdu ,oa fo'ys"k.k fd;s ,0lh0vks0 Jh frokjh
}kjk bl xzke esa pd fuekZ.k dj nsus ls pd fuekZ.k dh iwjh
izfdz;k nwf"kr gks xbZ gS] Jh frokjh }kjk iwjh lR;fu"Bk ls
vius nkf;Roksa dks fuoZgu ugh fd;k x;k gS] muds }kjk pd
fuekZ.k esa cjrh xbZ mDr O;kid Lrjdh vfu;ferrk,a
dnkfpr bl lhek rd ugh gS fd mu ij izkIr gksusokyh
pd vkifRr;ksa dk fuLrkj.k dj nsus ek= ls iwjh pd fuekZ.k
izfdz;k nks"keqDr ,oa fueZy gks tk,xh] cfYd mDr O;kid
vfu;ferrkvksa dks ns[krs gq, ,0lh0vks0 Jh ny flaxkj
frokjh }kjk fd;s x;s pd fuekZ.k dks iw.kZ :i ls fujLr
djds fdlh vU; ,0lh0vks0 ls u;s fljs ls le;c) jhfr
ls pd fuekZ.k dh izfdz;k dks iw.kZ djk;k tkuk U;k;ksfpr
izrhr gks jgk gSa

vkns'k

xzke chchiqj ijxuk o rglhy futkekckn tuin
vktex< esa lgk;d pdcUnh vf/kdkjh Jh ny flaxkj
frokjh }kjk fd;s x;s lEiw.kZ pd fuekZ.k dks fujLr fd;k
tkrk gS vkSj lgk;d pdcUnh vf/kdkjh Jh lwju izlkn dks
bl xzke dk u;s fljs ls pdfuekZ.k djus gsrq vf/kd`r djrs
gq, funsZ'k fn;k tkrk gS fd og ,0lh0vks0 Lrj dk lEiw.kZ
pd fuekZ.k dk dk;Z foyEore 30-6-2000 bZ0 rd gj
n'kk eas iw.kZ djsaA cUnkscLr vf/kdkjh pdcUnh vktex< dks
funsZ'k fn;k tkrk gS fd nks"kh lgk;d pdcUnh vf/kdkjh ds
fo:) dBksj n.MkRed dk;Zokgh gsrq vkjksi fojfpr djrs
gq, ,d lIrkg ds vUnj foHkkxh; dk;Zokgh dh i=koyh is'k
djsa] blds vykok nks"k iw.kZ ,d fuekZ.k dh bl iwjh izfdz;k
esa lafyIr jgs nks"k pdcUnhdrkZ ,oa ys[kiky ds fo:) Hkh
dBksj vuq'kklukRed dk;Zokgh lqfuf'pr dh tk;A
,0lh0vks0 Jh lwju izlkn dks mDr dk;Z le; ls iw.kZ
djus ,oa dk;ksZ dh 'kr izfr'kr xq.koRrk cuk;s j[kus gsrq
LoPN Nfo ds deZB pdcUnhdrkZ ,oa ys[kiky miyC/k djk;s
tk;A le; le; ij muds dk;ksZa dk fu;fer :i ls
vuqJo.k Hkh fd;k tk;A vuqikyukFkZ vkns'k dh izfr
cUnkscLr vf/kdkjh pdcUnh vktex<+ o lgk;d pdcUnh
vf/kdkjh Jh lwju izlkn dks rRdky izsf"kr dh tk;A vkns'k
dh ,d ,d izfr Mh0Mh0lh0] ,l0vks0lh0] lh0vks0 o
,0lh0vks0 dksVZ es vuqjf{kr j{kd ifTtdkvksa ij Hkh j[krs
gq, pdcUnh lfefr ds v/;{k@ xzke iz/kku dks Hkh bl
vk'k; ls lqyHk djk nh tk; fd og bl vkns'k dh equknh
fof/kor iwjs xzke esa djk nsA vko';d dk;Zokgh ds mijkUr
i=koyh lfPpr dh tk;A
fnukad 8-1-2010 bZ0**

11. From a careful reading of the
impugned order dated 8.1.2010 passed by
Deputy Director of Consolidation it is
clear that it was passed by him on the
basis of report of Settlement Officer of
Consolidation dated 7.12.2009 and after
hearing the members of consolidation
committee,
complainants
and
other
persons of the village who have come
forward
in
support
of
provisional
consolidation
scheme
prepared
by
Assistant Consolidation Officer namely
Sri Dal Singar Tiwari. In the impugned
order, Deputy Director of Consolidation
has narrated the contents of the report of
Settlement Officer of Consolidation, who
had submitted it after making spot
inspection of the village and after
affording opportunity of hearing to the
chak holders and persons, who had made
complaints
in
respect
of
various
illegalities committed by the Assistant
Consolidation Officer while preparing
provisional consolidation scheme. The
Deputy Director of Consolidation has
found that in the said report, Settlement
Officer of Consolidation had narrated
various
irregularities
and
illegalities
committed by Assistant Consolidation
Officer
while
preparing
provisional
consolidation scheme of the village which
could not be rectified and cured in
individual objections, which may be filed
against said provisional consolidation
scheme and he has further found that the
illegalities and irregularities were of such
a nature which could not be cured
otherwise except by cancellation of entire
278 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

provisional consolidation scheme of the
village prepared by Dal Singar Tiwari,
therefore in order to remove and cure the
aforesaid illegalities and irregularities, the
Deputy Director of Consolidation has
cancelled
the
entire
provisional
consolidation scheme of the village while
directing another Assistant Consolidation
Officer
for
preparation
of
fresh
provisional consolidation scheme of the
village which is intended to be completed
by 30.6.2010.

12. Now first question arises for
consideration is that as to whether the writ
petition filed by petitioners at this stage is
maintainable? and/or as to whether the
petitioners are aggrieved persons entitled
to challenge the impugned order passed
by Deputy Director of Consolidation at
this stage?

13. In this connection, it is to be
noted that by impugned order dated
8.1.2010 passed by Deputy Director of
Consolidation he has cancelled the entire
provisional consolidation scheme of the
village in question prepared by Assistant
Consolidation Officer under Section 19-A
of the Act with a further direction to
another Assistant Consolidation Officer to
prepare a fresh provisional consolidation
scheme of the unit. It is further significant
to be noted that against the provisional
consolidation scheme the aggrieved chak
holders of the village have right to file
objection before consolidation officer
under Section 20(2) of the Act and
thereafter any person aggrieved by the
order/decision of Consolidation Officer is
entitled to file appeal under Section 21(2)
of the Act before Settlement Officer of
Consolidation and thereafter has right to
prefer revision before Deputy Director of
Consolidation under Section 48 of the
Act. But in instant case, since the
provisional consolidation scheme of the
unit prepared by Assistant Consolidation
Officer namely Sri Dal Singar Tiwari has
been cancelled by Deputy Director of
Consolidation with a further direction to
another Assistant Consolidation Officer to
prepare fresh provisional consolidation
scheme of the village under Section 19-A
of the Act, therefore, no question arises
for filing objection before Consolidation
Officer under Section 20(2) against said
cancellation
for
simple
reason
that
preparation
of
fresh
provisional
consolidation scheme of the village is still
under contemplation and after preparation
of fresh provisional consolidation scheme
the aggrieved chak holders would be
entitled to file an objection under Section
20 (2), appeal under Section 21 (2) and
revision under Section 48 of the Act thus
the rights and interest of petitioners have
yet not been impaired by impugned action
of Deputy Director of Consolidation
causing any genuine grievance so as to
entitle them to approach this Court under
Article 226 of the Constitution seeking
writ of certiorari.

14. In this connection, it would also
be useful to refer some decisions of
Hon'ble Apex Court herein after, wherein
the Hon'ble Apex Court has considered
the content and import of words "person
aggrieved" entitled to file appeal, revision
and a writ petition under Article 226 of
the Constitution of India.

15.

"In
Bar
Council
of
Maharashtra
Vs.
M.V.
Dabholkar,
(1975) 2 SCC 702, while dealing with the
content
and
scope
of
expressions
"aggrieved person" to maintain an appeal
under Section 38 of Advocate Act, a
Seven Judges Constitution Bench of
1 All] Uma Shanker Rai and others V. D.D.C, Azamgarh and others

279
Hon'ble Apex Court held that where a
right of appeal to courts against an
administrative or judicial decision is
created by statute, the right is invariably
confined to a "person aggrieved" or a
person who claims to be aggrieved. The
meaning of words "an aggrieved person"
may vary according to the context of
statute. One of the meaning is that a
person will be held to be aggrieved by a
decision if that decision is materially
adverse to him. Normally one is required
to establish that one has been denied or
deprived of something to which one is
legally entitled in order to make one "an
aggrieved persons". Again a person is
aggrieved if a legal burden is imposed
upon him. The meaning of words "a
person aggrieved" is sometimes given
restricted meaning in certain statute which
provide remedies for the protection of
private
legal
rights.
The
restricted
meaning requires denial or deprivation of
legal rights. A more liberal approach is
required in the background of statutes
which do not deal with property rights but
deal with professional conduct and
morality. The role of the Bar Council
under the Advocates' Act is comparable to
the role of a guardian in professional
ethics. The words "person aggrieved" in
Section 37 and 38 of the Act are of wide
import and should not be subjected to a
restricted interpretation of possession or
denial of legal rights or burdens or
financial interests. The test is whether the
words "person aggrieved" include "a
person who has a genuine grievance
because an order has been made which
prejudicially affects his interests.

16. In Jasbhai Motibhai Desai Vs.
Roshan Kumar, Haji Bashir Ahmed and
others A.I.R. 1976 SC 578 in para 34 of
the decision the Hon'ble Apex Court has
held as under:-

"34. This Court has laid down in a
number of decisions that in order to have
the
locus
standi
to
invoke
the
extraordinary jurisdiction under Article
226, an applicant should ordinarily be
one who has a personal or individual
right
in
the
subject-matter
of
the
application, though in the case of some of
the writs like habeas corpus or quo
warranto this rules is relaxed or modified.
In other words, as a general rule,
infringement of some legal right or
prejudice to some legal interest inhering
in the petitioner is necessary to give him a
locus standi in the matter. (see State of
Orissa V. Madan Gopal Rungta AIR 1952
SC 12; Calcutta Gax Co. V. State of W.B.
AIR 1962 SC 1044; Ram Umeshwari
Suthoo V. Member, Board of Revenue,
Orissa (1967) 1 SCA 413; Gadde
Venkateswara
Rao
V.
Rajasaheb
Chandanmall; Dr. Satyanarayana Sinha
V. M/s. S. Lal & Co. (1073) 2 SCC 696.

17. In Ghulam Qadir Vs Special
Tribunal and others (2002) 1 SCC 33 the
Hon'ble Apex Court has again reiterated
the earlier view taken by Apex Court and
held that "there is no dispute regarding the
legal proposition that right under Article
226 of the Constitution of India can be
enforced only by an aggrieved person
except in the cases where writ prayed for
is for habeas corpus or quo warranto.
Another exception in the general rule is
the filing of writ petition in public
interest."

18. Applying the aforesaid principle
of law laid down by Hon'ble Apex Court
in given facts and circumstances of the
case, I am of the considered opinion that
280 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

since vide impugned order passed by
Deputy Director of Consolidation while
cancelling the provisional consolidation
scheme of the village in question, a fresh
provisional
consolidation
scheme
is
intended to be prepared by another
Assistant Consolidation Officer, thereafter
aggrieved person would be entitled to file
objection against said fresh provisional
consolidation scheme of the village, under
section 20(2) of the Act, therefore, at this
stage the right and interest of petitioners
cannot be held to be prejudiced or
impaired and further it can not be held
that they have any genuine grievance
against impugned action accordingly it
can not be held that the petitioners are
'aggrieved persons', entitled to file instant
writ petition at this stage.

19. Now next question arises for
consideration is that as to whether the
impugned
order
passed
by
Deputy
Director of Consolidation is covered by
the provisions of Section 48(3) of Act or
as to whether the impugned action taken
by him is ultravires, the aforesaid
provisions of Act being beyond the scope
of authority under law and without
jurisdiction?

20. In this connection it would be
appropriate to examine the provisions of
Section 48 of the Act which is being
reproduced in extenso as under:-

"[48.